Aman Ichhpuniani Vs The Vice Chancellor Delhi ... On 19 December, 1997

Aman Ichhpuniani vs The Vice Chancellor Delhi ...
on 19 December, 1997
Delhi High Court

Aman Ichhpuniani vs The Vice Chancellor Delhi ... on 19 December, 1997
Equivalent citations: 1998 IAD Delhi 365, 71 (1998) DLT 202, 1998 (44) DRJ 52
Author: R Lahoti
Bench: R Lahoti, J Goel
ORDER R.C. Lahoti, J.
1. Intra-University Migration - from one college to another within the same university - by a student
is a vested right or a right merely, and if so, whether it is capable of being enforced in exercise of writ
jurisdiction of High Court - is the question arising for decision in this batch of petitions.
2. The petitioners are four. Briefly we set out the factual background so as to appreciate the crux of
controversy.
2.1 In CWP 3749/97, the petitioner Madhurjya Kotoky is a student of B.A. (Hon.) History Part-I in
Ram Lal Anand College having passed that examination with 67% marks and merit in the university.
The result was declared on 23.7.97. On 31.7.1997, he approached the Principal of the College seeking
latter's 'No Objection' to migration to another College. On 8.8.97, he approached Ramjas College
seeking admission therein and the principal of Ramjas College has issued 'No Objection' for his
entry in his institution. The grievance of the petitioner is that the Principal, Ram Lal Anand College,
(respondent No.1) is not issuing "No Objection" permitting his migration from his Institution. In the
application dated 28.8.97 made to the respondent No.1, the only reason set out for seeking
migration is - "I wish to migrate to a reputed College in the North Campus as it would be more
convenient for me."
2.2 In CW 3907/97, the petitioner Aman Ichhpuniani is a student of Shaheed Bhagat Singh College
(Evening) wherefrom he has passed B.Com (Hon) Ist Year Course with 66% marks in July, 1997. On
22.7.1987 he moved an application (Annexure-A) to the Principal of the College seeking "No
objection" to his migration to Shaheed Bhagat Singh College (Morning). The reason stated in the
application is - "this change over would also enable me to pursue computer Course (NIIT) and
Chartered Accountancy (CA) Course without clash of timings with the afternoon classes."
2.3 In CW 4629/97, the petitioner Kumari Jaya Dutt is a student of B.Com (Hon.) IInd Year in
Shaheed Bhagat Singh College (Evening). She has passed the Ist year examination in July, 1997 with
65.2% marks. She continued in the Second Year Classes. On 7.8.97 she moved an application to the
Principal, Shaheed Bhagat Singh College (Eve.) - respondent No.3, seeking "No objection" to her
migration to Shaheed Bhagat Singh College (Morning). The reason stated is - "I have joined a
computer course in the First Computers Academy and my College timings clash with my computer
classes which are held at 2.00-4.00 PM on Monday, Wednesday, Thursday and Friday. Due to this, I
am not able to attend classes in College. I would thus like to migrate to the morning college as those
timings suit me more."
2.4 In CW 4446/97 Ms.Neeru Rawal has passed B.Com Ist year as a regular student of Shaheed
Bhagat Singh College (Evening), the respondent No.1, securing 55.2% marks. On 14.10.97 she moved
Indian Kanoon - http://indiankanoon.org/doc/749768/ 1

an application seeking "No Objection" to her migration to Gargi College for prosecuting B.Com
(Pass) IInd year studies. The application Annexure P-3 does not set out any reason for the proposed
migration except that - "I would like to migrate". In the application (Annexure P-2) made to Gargi
College, where the petitioner seeks to migrate, she has stated that she had shifted her residence near
to the Gargi College and wished to migrate due to erratic bus service, but the same reason was not
stated in the application Annexure P-3.
2.5 All the above said prayers for migration have been turned down by being withheld. No speaking
order has been passed. The present petitions have been filed by the several petitioners seeking writ
of mandamus commanding the principals of the present educational institution where the
petitioners are studying to issue 'No Objection Certificate' to the proposed migration. All the
educational institutions where presently the petitioners are studying have opposed the prayer
made in the petitions. The details of the plea shall be noticed at an appropriate place.
3. The relevant part of Ordinance-IV of the Act, Statutes and Ordinances of the University of Delhi
which is relevant for the purpose of these petitions provides as under :-
"2. Application for migration from one College of the University to another shall only
be entertained by the Principal if forward- ed by the Principal of the College from
which migration is sought, and the necessary alteration in the enrollment entries
shall only be made in the University Register by the Registrar after obtaining the
consent in writing of both Principal."
4. All the petitioners have vehemently relied on a Division Bench decision of this Court in Sumeet
Sawhney VS. The Principal Sri Aurvindo College & Ors. (CW 3089/95) decided on 19.10.95
disposing of four writ petitions filed by the students seeking migration from one college to another
College in Delhi University. In that case, the prayer for migration was opposed on the ground that
'No Objection' for migration was refused (i) to maintain and improve the academic standards of the
College by retaining the good students; and (ii) to maintain the student-teacher ratio on the basis of
which maintenance grant is given to the college by the University Grant Commission. The Division
Bench held :-
"Though the anxiety of the Staff Council and the College to maintain and improve the
academic standard of the College as also their anxiety to maintain the student teacher
ratio, may be appreciated but at the same time, we find it difficult to accept the
contention that in order to achieve the said objects, the students can be compelled
against their desire and wish to continue study in a particular college. Undoubtedly
no student has any vested right to seek migration but the real question in these cases
is not about the vested right of the students, but it is about the legality of the stand of
the College from where migration is sought. Can No Objection Certificate be refused
to a student when the College to which admission is sought, is willing to give
admission to that student. The answer to this question has to be in favour of the
student. Where a student with a view to improve his career wants to join another
college, which student feels is better and thinks that he would be able to make a

better mark in another college to deny migration to such a student on the grounds
stated by the College from which migration is sought, would be unjust and
unreasonable. The grant of permission to migrate may be discretionary but the
discretion is required to be exercised on sound legal principles and by adopting just
and reasonable approach. Ordinarily this Court may not interfere in exercise of
discretion in academic matters but where the career of students is involved and the
approach of college is not just and reasonable, the Court has to come to the aid of
aggrieved students. As already noticed above, the stand of the University and the
College to which migration is sought is also that students cannot be compelled to
study in a particular college. Further apart from the decision of the Staff Council, no
other provision has been brought to our notice barring migration. On the other hand
Ordinance-4, as noticed above, specifically permits migration. It may also be noticed
that while operating aforesaid Ordinance in practice the student who is to apply for
No Objection Certificate from which he seeks migration, would do so only when he
has been ensured admission in any other college and, therefore, the question of
violation of Ordinance-4 does not arise."
4.1 The writ petitions were allowed directing the respondents-Colleges to issue no objection
certificates.
5. The present petitions were filed in Delhi High Court and came up for hearing before a Single
Judge in view of the amendment in the High Court Rules.
6. Before the learned Single Judge, the petitioners placed reliance on the Division Bench decision
above said. It appears that the learned Single Judge was not inclined to allow relief to the petitioners
in view of the law laid down by the Division Bench. However, sitting singly the learned Single Judge
felt himself bound by the Division Bench decision and rightly so. In CW 3907/97 the learned Single
Judge passed a detailed order and set out the following reasons for taking a different view :-
1. The Division Bench has held in the judgment in CW 3089/95 that no student has a
vested right to seek migration from one college to the other.
2. Ordinance IV relied on by the petitioner does not cast a duty or obligation on the
principal to issue no objection letter in every case.
3. The provision in the said Ordinance implies the existence of a discretion to the
Principal not to permit migration in appropriate cases in order to safeguard the
interest of the college or to protect academic discipline.
4. While considering the request for migration it is open to the Principal to consider
relevant aspects like the genuine- ness and sufficiency of the reasons stated by the
student for migration, the possible impact of such migration on the academic and
administrative functioning of the college from which migration is sought and the
period already completed and remaining to be completed in the course of study.

5. The impression of the student that another college is a better institution or the
expectation of the student that study in another college will improve his career
cannot be the sole basis for permitting migration.
6. Before joining the course in the present college the student had the option and
choice to join any other college considered better. Having joined the course and
having successfully completed one year of the three year course the student is
seeking migration to another college during the middle of the course. In my view this
need not be allowed except in extreme cases where it is difficult for the student to
continue in the present college due to intervening circumstances. There is no such
situation in this case.
7. One can understand a student, not being sure of getting admission in the College of
his preference, taking admission in another college and later seeking migration to the
college of his preference when the admission is offered there. But it should be at the
beginning of the course in the first year and not after successfully completing one
year in the first college. It is significant that in this case the decision of the Staff
Council and the Principal was to deny migration of students of second year and third
year classes only.
8. In my view the difficulties and problems pointed out in paragraphs 11, 12 and 13 of
the affidavit of respondent No.2 deserve serious consideration while deciding the
necessity and desirability of interfering with the decision of the Principal of the
College. On a consideration of the problems and difficulties stated by the Principal, I
am not persuaded to interfere with the decision of the Principal.
7. The Learned Single Judge further opined that some of the aspects referred to above were not
considered in the judgment by the Division Bench. In his opinion the Division Bench decision
required reconsideration. He referred the matters to Hon'ble the Chief Justice for being placed
before a D.B. This is how all these matters have come up before us and have been heard on merits.
8. At the time of hearing, the learned counsel for the respondent-colleges where the petitioners are
presently studying have submitted that the Division Bench decision in Sumeet Sawhney's case
(supra) needs reconsideration for four reasons : firstly, the decision runs counter to the law laid
down by the Supreme Court in the case of State of U.P. & Anr. Vs. Praveen Kumar Sharma & Ors.,
1994 (5) SLR 563; secondly, the decision is contrary to the Ordinance; thirdly, the decision is
self-contradictory; and lastly all the contentions on which the prayer for migration is opposed have
not been taken note of and considered by the Division Bench. It was also submitted that the
petitions are liable to be dismissed in limine in as much as migration is not a vested right of the
petitioners and hence no mandamus can issue for enforcing such an assumed right. Reliance was
placed on Dhiraj Sarwal Vs. The State of Punjab , a Single Bench decision.
9. Before we may enter into testing the validity of the submissions made on behalf of the learned
counsel for the respondents, we propose to deal with the issue in hand independently of the Division

Bench decision in Sumeet Sawhney's case (supra).
10. According to the respondent-Colleges who are opposing migration, migration is a discretionary
benefit available to the student to remove extreme hardship in any given case. It is not meant to be
resorted to on a routine basis i.e. it is not to be necessarily granted merely because it is asked for. It
is a matter of discretion with the principal of the College concerned. It is also pointed out that a
large number of students were seeking migration. The norms laid down by the UGC provide the
teacher- student ratio of 1:12 in Honours courses and 1:20 in Pass courses. If large scale migration to
another college is permitted the college may be placed in a situation where it would not have grants
for payment of salary to teachers and their services will have to be terminated. It is submitted that in
the interest of justice, the hardship of the teachers and teaching institutions who exert hard to train
students is also a relevant material consideration.
11. The first contention of the learned counsel for the respondents has been that migration is not an
enforceable right vesting in the petitioners and therefore no writ seeking mandamus would lie
before this Court. It was further submitted that the statutory provision vests a discretion in the
principal of the institution to forward or not to forward the application for migration and such a
discretion cannot be interfered with by a writ of mandamus more so when it vest in an educational
authority.
12. We are conscious of our limitation on jurisdiction to judicially review a decision taken in the field
of academics. In Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs.
Paritosh Bhupesh Kumarsheth their Lordships have held :-
"The Court should be extremely reluctant to substitute its own views as to what is
wise, prudent and proper in relation to academic matters in preference to those
formulated by profession- al men possessing technical expertise and rich experience
of actual day-to-day working of educational institutions and the departments
controlling them."
13. However, that does not amount to saying that the decisions taken by the administrative
authorities in the field of academics and education are immune from judicial review and no writ can
issue for securing performance of statutory duty cast on such authorities. In S.G. Lekhraj Vs. N.M.
Shah, their Lordships have held that a writ of mandamus may be granted where there is a statutory
duty imposed upon the officer concerned and there is a failure of that officer to discharge that
statutory obligation. The chief function of the writ is to compel the performance of public duties
prescribed by statute and to keep the subordinate tribunals and officers exercising public functions
within the limits of their jurisdiction.
14. A writ of mandamus may issue not only for enforcement of a right but also for compelling
performance of a duty. The very provision for migration from one College to another within the
University enacted by Ordinance IV contemplates the existence of a right to migrate. We will not go
on to the extent of saying that such a right is a vested or unbridled right. Nobody can be permitted to
migrate just for whim and fancy. Good education is a scarce commodity and good institutions

displaying pieces of good education on their selling counters are equally scarce. The seats are
invariably limited because the number of seats depends on very many considerations including
administrative and financial. Once a student has been allowed admission in a particular institution
in a particular course of study he occupies that seat excluding others in waiting from entering the
course by necessary implication. If such a student is allowed to leave the seat and migrate to another
institution at his sweet will or merely for whim and fancy, he is certainly depriving someone else
known or unknown from learn- ing by leaving the seat vacant.
15. On the other hand, if an educational institution is maintaining high standards and rendering real
service in the field of education it is bound to enjoy good reputation which would spread like
fragrance in academic world. A student having secured admission in such an educational institu-
tion would feel lucky and would be least inclined to leave it. He would like to pursue the studies in
such an institution inspite of other difficulties. Even if a student is forced to migrate away from such
an institution the vacancy so created would be filled up soon by others flocking thereat.
16. Nevertheless, the existence of Ordinance-IV does contemplate migration. The provision also
casts a duty on the principal of the college from which migration is sought to exercise his discretion
and take a decision on prayer for migration guided by reason keeping in view the relevant
considerations and not merely by whim and caprice. Like all other discretionary powers vesting in
public authorities, the power to forward an application seeking migration is also coupled with a
duty. Each prayer shall have to be dealt with on its own individual merits. If the prayer for migration
be a bald prayer it may not be allowed merely for asking. On the contrary if there are valid reasons
assigned providing reasonable justification for such demand, the principal on being satisfied of the
availability of just grounds for migration, is duty bound to forward the application. Else the exercise
of discretionary power would stand vitiated for unreasonableness or arbitrariness.
17. To illustrate, the concept of neighborhood schools is gaining ground amongst the students and
parents/guardians as a school in neighborhood available to cater to the educational needs of the
students avoids the necessity of commuting and thereby saving time, also saving from the hazards of
traffic. Distance between the place of residence and the place of institution is a relevant
consideration when the student may find another institution available to cater to his needs and
situated in closer proximi- ty.
18. Every student aspires to have the best education and for that purpose searches for the best
institution accessible to him and within his means. Having opted for an educational institution and
having been successful in securing admission therein ordinarily he would not opt out of it unless
there be reasons for doing so. Students in schools and even upto initial years of the College are
invariably advised by their parents and guardians in choosing course of study and the institution.
While seeking migration they will ordinarily have the counsel of their parents and guardians with-
out which they would not decide to migrate. In appropriate cases the principal would do well to have
a dialogue with the parents or guardians of the student before taking a decision on the students
request for migration. Applications made by the students to their teachers and principal are not
drafted on legal advise. They have to be dealt with in an atmosphere full of affection and harmony.
An interview or dialogue between the principal and the student, accompanied by parents or

guardian if need be, would bring out the real reason for the prayer for migration enabling a just
decision thereon by the Principal.
19. No institution can afford to retain good students with it by forcing them to do so. They have to be
persuaded and made to feel convinced. A good student leaving a good institution is a contradiction
in terms. It is equally true that a student cannot be allowed to migrate if institutional discipline
would suffer in permitting him to do so. To illustrate, student facing disciplinary proceedings in an
educational institution cannot be allowed to migrate if motivated by the idea of getting rid of such
proceedings.
20. The mind of a student is immature. In an educational institution it is in the process of being
trained. The teachers and the principal of the institution are trustees of the students and their
parents, who repose faith and confidence in them for training the mind of the students and shaping
them so as to be fit to face the world and bear the burden of life. For valid reasons the principal may
form and opinion that it would not be in the interest of the student to permit migration howsoever
keen he may be to do so. He may have to weigh the interest of the institution also. Some- times the
interest of the institution and the interest of the student may conflict. He shall have to strike a
balance and find the weighty side to which the decision shall have to swing. The whole process shall
have to be objective. If the decision making process be vitiated or the decision itself be vitiated for
failure to take into consideration the relevant ones and/or for having been influenced by the
irrelevant and extraneous consideration or want of bonafide, the decision will be open to judicial
review. Of course, as held in Vice Chancellor, Utkal University & Ors. Vs. S.K. Ghose & Ors. it is not
the function of the courts of law to substitute their wisdom and discretion for that of the persons to
whose judgment the matter in question is entrusted by the law.
21. Here we may usefully quote from the S.G.Jaisinghani Vs. Union of India, where their Lordships
have made observation :-
"In this context it is important to emphasize that the absence of arbitrary power is the
first essential of the rule of law upon which our whole constitutional system is based.
In a system governed by rule of law, discretion, when conferred upon executive
authorities, must be confined with in clearly defined limits. The rule of law from this
point of view means that decisions should be made by the application of known
principles and rules and in general such decisions should be predictable and the
citizen should know where he is. If a decision is taken without any principle or
without any rule it is unpredictable and such a decision is the antithesis of a decision
taken in accordance with the rule of law. - (See Dicey - "Law of the Constitution" -
Tenth Edn. Introduction. cx) "Law has reached its finest moments." stated Douglas, J
in United States V. Wunderlich (1951) 342 U.S.98 "when it has freed man from the
unlimited discretion of some ruler ...........where discretion is absolute, man has
always suffered." It is in this sense that the rule of law may be said to be the sworn
enemy of caprice. Discretion, as Lord Mans- field stated it in classic terms in the case
of Rex Vs. John Wilkes (1770) 4 Burr 2528 at P.2539 means sound discretion guided
by law. It must be governed by rule not by humour; it must not be arbitrary, vague

and fanciful."
22. Whenever it is said that something has to be done within the discretion of the authority then
that something has to be done according to the rules of reason and justice and not according to
private opinion, according to law and not humour. It is to be not arbitrary, vague and fanciful but
legal and regular and it must be exercised within the limit to which an honest man to the discharge
of his office ought to find himself. Discretion means sound discretion guided by law. {Sant Raj Vs.
O.P. Singla, }.
23. To sum up, in our opinion :-
(i) To migrate from one college of the University to another is not a vested right of
student. A student may seek migration from one College to another, if there be
reasons for doing so. Ordanance-IV confers discretionary power on the principal of
the College from which migration is sought to forward or not to forward a prayer by a
student seeking migration. The power is coupled with a duty to act reasonably guided
by relevant consideration not by whim or caprice. The welfare of the student and the
institution have both to be kept in view and weighed - if there be conflict between the
two;
(ii) A student has a right to choose an educational institution of his choice while
seeking an admission, but such right cannot be exercised with the same vigour and
vitality while seeking migration;
(iii) A request by student seeking migration for reasons relevant and germane to such
prayer may not be denied unless the principal be satisfied of the non-availability of
the grounds or be of the opinion that the migration will not be in the interest of the
student or the interest of the institution outweighs the interest of the student. The
choice of the student has to be respected by giving due weight; for no sensible student
would ordinarily like to leave the institution which he had chosen to join.
24. In the light of what we have stated hereinabove, we may deal with the challenges laid by the
learned counsel for the respondents to the soundness of the view taken by the Division Bench in
Sumeet Sawhney's case (supra).
24.1 We have carefully read the judgment of their Lordships in the case of State of U.P. Vs. Parveen
Kumar Sharma (supra) 1994 (5) SLR 563. We are unhesitatingly of the opinion that the Division
Bench decision does not in any manner run counter to anything what their Lordships have said in
the case of Parveen Kumar Sharma. We may place on record that even during the course of hearing
the learned counsel for the petitioners could not substantiate challenge to the validity of the Division
Bench decision as being contrary to the law laid down by the Supreme Court.
24.2 We are also not at all impressed by the submission that the Division Bench decision is
self-contradictory. A judgment is not a piece of legislative enactment. It has to be read as a whole to

find out its ratio deciden- di. We cannot pick up sentences, read them in isolation and then develop
the plea of self-contradiction. Having laid down the principles independently for ourselves, we have
re-read the view of the law taken in Sumeet Sawhney's case (supra). We are reassuringly convinced
of the soundness of the view taken therein. It does not suffer from infirmity, much less any
self-contradiction.
24.3 The decision in Sumeet Sawhney case (supra) cannot for a moment be called contrary to the
Statute (i.e. Ordanance-IV).
24.4 Sumeet Sawhney's case (supra) takes care of all the contentions advanced before the Division
Bench. We are also of the opinion that the contentions advanced before us are noted by the learned
Single Judge in his order referred to in para above, would not make any change in the view taken by
us reaffirming the view taken in Sumeet Sawhney's case (supra).
24.5 For the foregoing reasons we are of the opinion that Sumeet Sawhney's case (supra) does not
call for any reconsideration.
25. Dhiraj Sarwal Vs. Distt. of Punjab is a case in which migration was sought for from one Medical
College to another. Decision was taken by the competent authority who had a discretion in the
matter after taking into consideration facts and circumstances of each student. No malafide of any
kind was alleged and the decision was a collective one. In that context the learned Single Judge
observed that there was no legal and vested right with the students seeking migration. So far as the
cases at hand are concerned, we are of the opinion that Ordinance-IV confers a statutory discretion
on the prinicipal coupled with a duty and to that extent confers a right in the students to seek
enforcement of such duty. A mandamus can issue not only for enforcement of a right, but also for
enforcement of a duty. When there is a failure to perform a duty as has been in the present cases or
when such duty is not performed in accordance with the settled principles governing the
performance of such discretionary power coupled with duty as we have already discussed, the
person aggrieved would have a right to invoke writ jurisdiction of the High Court seeking a writ of
mandamus.
26. Having so stated the law we would now proceed to deal with each individual case before us.
27. In the case of Kumari Jaya Dutt (CWP 4629/97) as also in the case of Aman Ichhpuniani (CWP
3907/97), each petitioner has assigned valid reasons for seeking migration. They have joined other
courses of study which is permissible to do and the timings of the institution imparting such
instructions clashes with the timings of Shaheed Bhagat Singh College (Evening). In order to
prosecute their regular studies alongwith additional courses of study, the two students want to shift
to morning colleges. It is not the case of the respondents that the reasons assigned are false and
non-existent. In our opinion these applications could not have been refused. These two petitions
therefore deserve to be allowed with a direction to the Principal of Shaheed Bhagat Singh College
(Eve.) to forward their applications for migration to the institutions of their choice which as per
averments made in the petition have already consented to take them.

28. The petitioners Madhurjya Kotoky and Kumari Neeru Rawal CW 3749/97 and 4446/97
respectively have not in their respective applications assigned any reason for seeking migration.
They have each made a bald prayer for migration solely because they 'wish to do so'. The principals
of the respective institutions in which these petitioners are studying would have been better advised
to call for each of the two petitioners, accompanied by their parents and guardians, if necessary, and
counseled them in the matter of migration. That was not done. However, as these petitioners have
failed to put forth their reasons for migration before the principals of the institutions for their
consideration, we cannot find fault with the respondents withholding the prayers. No relief can,
therefore, be allowed to these petitioners in exercise of our writ jurisdiction. They should be left free
to make an appropriate prayer to the principals concerned.
29. For the foregoing reasons, CWP 3907/97 and CWP 4629/97 are allowed. The principal of
Shaheed Bhagat Singh College (Eve.) is directed to forward the applications filed by Aman
Ichhapunian and Kumari Jaya Dutt, seeking migration to the institutions of their choice or else to
issue 'no objection certificate' for migration to each of them within one week from the date of this
order.
30. CW 3749/97 and CW 4446/97 are dismissed affording liberty to each of the two petitioners to
make an appropriate application (if they be so advised) setting out reasons for migration to the
principals of the institutions where they are presently taking education. Such an application if made
shall be considered and disposed of by the principal within a period of three days from the date of
making the application, as no migration is permissible after 31.12.97. Needless to say if the decision
be adverse to the applicant, the reasons thereof shall be assigned and also communicated.
31. No order as to costs.

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Aman Ichhpuniani vs The Vice Chancellor Delhi ...

Delhi High Court

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Indian Kanoon - http://indiankanoon.org/doc/749768/ 3

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Bench decision in Sumeet Sawhney's case (supra).

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Indian Kanoon - http://indiankanoon.org/doc/749768/ 6

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23. To sum up, in our opinion :-

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31. No order as to costs.

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